United States: Reviews Posted Under A Pseudonym Could Be Defamatory

Richard Raysman is a Partner in the New York office

As written on this blog before, plaintiffs often have difficulty when alleging claims of defamation against anonymous defendants. Unsurprisingly, websites that provide a forum for anonymous commentary are loathe to reveal the "true" identity of such commenters, if only because it would disincentivize users from frequenting the forum in the future. A recent case in California offers a twist on the common theme of ascertaining the offeror of online vitriol when seeking a viable cause of action for defamation. The twist concerns the attempt to use an anonymous identity to make defamatory statements online not via no name at all, but through the use of a name of a fictitious person.

In Judge v. Randell, No. A138481 (Cal. Ct. App. July 7, 2014), Greg Judge (Judge) sued Lori Randell (Randell) for defamation. The claims were based in large part on highly negative online reviews concerning Judge's business. However, in the twist on a typical online defamation matter, Judge did not seek to discover the identity of Randell, but whether Randell had created a fake individual to post pejorative reviews about Judge's business. As background, Randell had hired Judge, vial oral contract, to perform construction work on her backyard. Judge attempted to have Randell sign a written contract, but she refused. Judge then commenced work on the project, only to have Randell evict him from the job site without payment. Thereafter, Jeffrey Glassman (Glassman), who had earlier purported to be the attorney for Randell, began posting reviews on a variety of websites alleging that Judge was "inethical, [and] untrustworthy [sic]" and drunk on the job.

Judge sued Randell/Glassmen for defamation. Judge alleged that Randell was actually Glassmen, and thus responsible for the allegedly defamatory posts. The trial court found that Judge presented insufficient evidence to determine whether Glassmen and Randell were one and the same. However, Judge nonetheless prevailed on the grounds that Glassmen was acting as Randell's agent for this purpose, and therefore Randell was liable as the principal who approved the defamatory remarks.

Throughout the proceedings, Randell/Glassmen had utilized an anti-SLAPP motion to strike against Judge as its primary defense. The anti-SLAPP statute in California applies when a "cause of action arises from an act in further of defendant's constitutional right of petition or free speech in connection with a public issue." Cal. Civ. Proc. Code § 425.16 et seq. (West 2014); see also Flatley v. Mauro, 139 P.3d 2 (Cal. 2006) (noting that the trial court evaluates the merits of the plaintiff's claim using a summary judgment standard). In agreeing with the trial court, the appellate judge held that the statements of Randell/Glassman regarding the injurious business practices were protected public speech proffered in a public forum. Therefore, Randell/Glassman prevailed on the first prong of the anti-SLAPP analysis.

To prevail against an anti-SLAPP defense to a defamation cause of action, Judge had to prove that he had a probability of prevailing on his claim. As to the pseudonym theory, the court concluded that Randell and Glassman could be the same person. Glassman had sent emails from Randell's IP address, emails that contained a fax number traceable to Randell. In addition, Randell and Glassman employed the same diction in their respective writings to Glassman. For example, each used the phrase "trust me on this one" in their communications. Even accepting that Randell and Glassmen were in fact separate persons, the allegedly defamatory reviews could have nonetheless been written by Randell under Glassman's name.

As to the agency theory, Judge had to show that Glassman was under the control of Randell. The court concluded he succeeded in such a showing, for a number of reasons: (1) in one email sent to Judge, Randell exhorted Glassman to act on her behalf; (2) the reviews authored by Glassman were written in the first person plural, indicating that he posted the reviews for Randell; and (3) the emails sent from Glassman to Randell contained information that he would not have known about unless Randell had told him. Therefore, Judge had created a triable issue of fact as to whether Randell either authored the reviews under Glassman's name (the pseudonym theory), or had instructed Glassman to do so (the agency theory).

As for the requisite defamation element of falsity, the court cited two statements of Randell's that appeared to be defamatory. First, Randell (or Glassman) had alleged in a review that Judge was inebriated on the job. In response, Judge asserted he had one beer at lunch during the day in question, and the court found this sufficiently credible to hold that a trier of fact could find that Randell's assertion was false. Second, a review putatively authored by Randell claimed that Judge had to be sued to recover the cost of replacing the damage done during his work on her backyard. However, in a separate statement to the district attorney, Randell had declared that she was reimbursed for the cost of by an employee of Judge's company. Given the functionally direct contradiction between these two statements, the court concluded that the statement within the review that Randell had to sue Judge to recoup the costs of their business relationship was materially false.

Ultimately, the appellate court upheld the lower court ruling that denied Randell's motion to strike under the anti-SLAPP statute.

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